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Transconstitutionalism


ISBN13: 9781849464185
Published: May 2013
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £53.00



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Transconstitutiononalism is a concept used to describe what happens to constitutional law when it is emancipated from the state, in which can be found the origins of constitutional law.

Transconstitutionalism does not exist because a multitude of new constitutions have appeared, but because other legal orders are now implicated in resolving basic constitutional problems. A transconstitutional problem entails a constitutional issue whose solution may involve national, international, supranational and transnational courts or arbitral tribunals, as well as native local legal institutions.

Transconstitutionalism does not take any single legal order or type of order as a starting-point or ultima ratio. It rejects both nation-statism and internationalism, supranationalism, transnationalism and localism as privileged spaces for solving constitutional problems. The transconstitutional model avoids the dilemma of 'monism versus pluralism'.

From the standpoint of transconstitutionalism, a plurality of legal orders entails a complementary and conflicting relationship between identity and alterity: constitutional identity is rearticulated on the basis of alterity. Rather than seeking a 'Herculean Constitution', transconstitutionalism tackles the many-headed Hydra of constitutionalism, always looking for the blind spot in one legal system and reflecting it back against the many others found in the world's legal orders.

Subjects:
Constitutional and Administrative Law, Public International Law
Contents:
Introduction 1. Theoretical Background
I. Constitution as Metaphor?
II. The Premodern Hierarchical Social Formation
III. The Transition Period: Charters of Freedom or Political Settlements
IV. Multicentric Modern Society
V. From Structural Couplings to Transversal Rationality
2. From Transversal Constitution ...
I. The Constitution of Constitutionalism
II. The Transversal Constitution of the Constitutional State
III. Transversal Constitutions beyond the State?
3... to Transconstitutionalism between Legal Orders
I. Transconstitutionalism between Legal Orders as a Model for Treating Constitutional Problems
II. Transconstitutionalism between International Public Law and State Law
III. Transconstitutionalism between Supranational Law and State Law
IV. Transconstitutionalism between State Legal Orders
V. Transconstitutionalism between State and Transnational Legal Orders
VI. Transconstitutionalism between State Legal Orders and Extra-state Local Orders
VII. Transconstitutionalism between Supranational Law and International Law
4. Transconstitutionalism in a 'Multilevel' or Multicentric World Legal System
I. Multiangle Transconstitutionalism between Orders of the Same Kind and Orders of Different Kinds
II. Pluridimensional Transconstitutionalism of Human Rights
III. Outlines of a Methodology of Transconstitutionalism
5. Excursus: Limits and Possibilities of Transconstitutionalism in Terms of Empirical Conditions, Functional Requirement and Normative Claim
I. Empirical Conditions: Transconstitutionalism versus Asymmetry of the Forms of Law
II. Functional Requirement: Beyond Constitutional Utopia and Fragmentation - Promoting a 'Differentiated Communication Order' (System Integration)
III. Normative Claim: Beyond Hegemony and Community - Promoting Inclusion ('Social Integration')
Final Comment: The Other Can See Your Blind Spot

Series: Hart Monographs in Transnational and International Law

Control Beyond the State: Transnational Counter-Terrorism Law ISBN 9781849465595
To be published February 2018
Hart Publishing
£35.00
Transconstitutionalism (eBook) ISBN 9781782251255
Published May 2013
Hart Publishing
£41.66 + £8.33 VAT
(ePub)
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£22.49 + £4.50 VAT
(ePub)
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The Payment Order of Antiquity and the Middle Ages: A Legal History (eBook) ISBN 9781847318664
Published November 2011
Hart Publishing
£91.66 + £18.33 VAT
(ePub)
Buy
The Payment Order of Antiquity and the Middle Ages: A Legal History ISBN 9781849460521
Published November 2011
Hart Publishing
£110.00
The Institutional Veil in Public International Law ISBN 9781841136349
Published September 2007
Hart Publishing
£57.00
£38.00
£57.00
Terrorism and the State: Rethinking the Rules of State Responsibility ISBN 9781841136271
Published March 2006
Hart Publishing
£34.00